Individual Application

The Facts

The applicant, a retired Ambassador, was serving as a Judge at the International Residual Mechanism for Criminal Tribunals (“IRMCT”) at the material time. An investigation was initiated against him, following the attempted coup of 15 July, for his alleged involvement in the FETÖ/PDY hierarchical structure. In this statement, the applicant asserted that he enjoyed diplomatic immunity and that the conditions of detention had not been satisfied in his case. The applicant detained on remand by an order of the magistrate judge appealed his detention order; but his appeal request was dismissed. Thereafter, he lodged an individual application with the Court.

    On the other hand, a criminal case was opened against him before the incumbent assize court by the bill of indictment issued by the chief public prosecutor’s office. At the end of the proceedings before the assize court, the applicant was sentenced to 7 years and 6 months’ imprisonment for his membership of the said armed terrorist organization. He then appealed his conviction before the Regional Court of Appeal which dismissed his appeal on the merits. He further appealed the decision rendered by the Regional Court of Appeal. The appeal proceedings had been still pending by the date when his application was examined.

    The Applicant’s Allegations

   The applicant maintained that his right to personal liberty and security had been violated due to the unlawfulness of his arrest, custody and detention that were ordered within the scope of the investigation conducted in connection with the attempted coup. 

    The Court’s Assessment

    The applicant alleged that he had been detained in breach of the safeguards inherent in the diplomatic immunity to which he was entitled by virtue of his profession.

    Those who are taking office as a judge at the UN IRMCT shall be afforded privileges, immunity, exemptions and opportunities which are enjoyed by diplomatic representatives pursuant to the international law.  However, the exemptions and immunities laid down in the relevant statutory arrangements are applicable in the States where these officers are taking office. As they cannot rely on the specified exemptions and immunities before the bodies of the State of their origin which they represent, any investigation initiated against them will be conducted in accordance with general provisions, and their detention may be ordered, if deemed necessary, by the magistrate judges which are the judicial bodies exercising general jurisdiction.

    Therefore, in the present case, the applicant’s allegation that his detention was in breach of the safeguards that he should have enjoyed, pursuant to the international law, in his capacity as a judge at the IRMCT was groundless.  In this sense, the applicant’s detention had a legal basis.

    Given the general circumstances prevailing at the time when his detention was ordered, the particular circumstances of the present case as well as the content of the order issued by the magistrate judge as a whole, it has been concluded that the grounds underlying the applicant’s detention had factual basis.

    Regard being had to all circumstances of the present case, the magistrate judge’s conclusion that the applicant’s detention was a proportionate measure and that the conditional bail would be insufficient cannot be said to be arbitrary or unfounded given the severity of the sanction prescribed for the imputed offence as well as nature and significance of the criminal act. For these reasons, it is clear that there was no violation in respect of the alleged unlawfulness of the applicant’s detention.

    Consequently, the Court has found inadmissible the alleged violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution.